Dispute Resolution in Healthcare Sector: The Need for a Suitable Indian ‘ADR’ Model
Rise of Medical Litigation in India-
Alternative Dispute Resolution (ADR) is a mechanism to settle a dispute outside the periphery of the arduous litigation process. It is practiced in forms like Arbitration, Mediation, Conciliation, Negotiation and Collaborative Law and this has seen the light of the day in this century where the aggrieved party has preferred .
The main purpose for adopting these mechanisms is to do away with the lengthy and time consuming litigation process. Certainly, the ADR mechanism in India has been termed as one of the finest and efficacious mechanisms to resolve disputes and owing to the current pandemic scenario, there is a high probability of a rise in commercial disputes being settled through ADR mechanisms in India.
The pandemic has given an opportunity to examine and delimit the scope of the ADR mechanism and with the right skill set and promotion, ADR can become the new sought after arena for quick dispute resolution and by doing this, the Courts in India will not be heavily burdened and justice could be served as quickly as possible because ‘delayed justice is denied justice’ and that gap could be bridged if we all took a more serious outlook on the new mechanisms of dispute resolution which are no less than the traditional methods of dispute resolution.
Healthcare is one such potential sector that should be made friendly to the ADR mechanisms as there has been an incessant rise in medical litigation in India as compared to the last decade. As per the findings of the survey carried out by National Law School of India University (NLSIU) in 2015, there has been a 400% increase in medical litigation due to consumer awareness. [1] With that being said, one can easily predict that there will be a steady rise of medical disputes during the current time of pandemic as more informed consumers are now accessing the healthcare facilities, thus, it is required that India should adapt itself to an atmosphere which accepts and recognizes the pillars of the ADR mechanism even in the healthcare sector.
Analysing the scope of ADR in Healthcare Sector-
Due to the unprecedented cost of litigation, many healthcare providers have now stressed on including a pre-dispute ADR clause in its Admission Agreement. They are in the form of Arbitration, Negotiation, or Mediation. One more important reason for shifting the redressal process from litigation to ADR is the nature of healthcare disputes. As understood, a healthcare dispute which involves cases related to medical negligence, wrongful treatment, breach of trust and confidence, etc. are all very technical and complex in nature. The ADR forum gives the liberty to the parties in dispute to appoint individuals who have experience and desired knowledge in this specific field and who carefully understand the framework in use.[2] In addition to this, in some countries, a proper association of dispute resolution professionals have been constituted which shall provide panels in ADR forums for resolving healthcare disputes. In India, the Medical Council of India or Indian Medical Association can Act as such dispute redressal bodies that can provide experienced panels on a case on case basis to help effectuate the resolution process.
To promote the use of addressing healthcare disputes through ADR mechanisms in India, there is a need for having proper provisions and clauses in admission Agreements that are signed by healthcare-facility providers and healthcare-facility users. Such Agreements shall include the clause of mandatory Mediation, Negotiation, or Arbitration in case of any dispute that arises between the parties. A set of guidelines should also be issued that shall govern the process of ADR mechanism, however, such guidelines should be just, fair, and should uphold the conscience of the parties before the dispute.
Different ADR Healthcare Models-
Globally, many different Models of ADR in the healthcare industry are available as a precedent out of which Indian healthcare providers can select and adopt the most suitable Model according to their functionality. One such ADR Model that is popular around the globe and could be adopted in India is “The Chicago Rush Medical Centre Model” or “The Rush Model”[3] which was developed in 1995 in response to high legal costs and non-uniformed jury awards in malpractice cases. This Model stresses on a mediation Agreement that includes “an early exchange of pre-mediation submissions, brief presentations by each side at the initial mediation conference, and caucus procedures”. This Agreement also includes the provisions related to expense, confidentiality, and appointment of mediators. Over the span of the first five years of its introduction, more than 50 cases were mediated and 80% of such disputes were resolved in less than 1 year with 3-4 hours of Mediation sessions.
Another popular ADR Model that Indian healthcare providers could adopt is the “Pew Mediation and ADR Model”. This mediation Model was implemented in different healthcare systems and hospitals in Pennsylvania in 2002. This Model intends to improve communication between doctors and patients in cases of medical error or patient-concerns and to further resolve it through Mediation and fair compensation.
“The Model recommends:
- Physicians and other healthcare professionals learn communication skills for disclosure conversations;
- Process experts help plan, conduct, and debrief disclosure conversations;
- Hospitals allow physicians and hospital staff the time necessary for disclosure conversations;
- All involved parties, including physicians and hospital leaders, offer an apology;
- Debriefing and support of healthcare professionals after the error or adverse event; and
- Use of mediation to settle potential claims.”
Similar to those Models discussed above, few more Models have shown positive results in addressing healthcare disputes through ADR mechanisms. Some of the other Models are the “Internal Neutral Mediator Model”, “University of Michigan Model”, and “The Veterans Affairs Model”[4]. Such Models have proved to be cost-effective in nature and have been patient-friendly. India that has seen a surge in medical litigation can work on such Models and can customize it according to the needs of the Indian legislative periphery.
Conclusion-
Time and again, the Supreme Court of India has stressed on the need for adopting ADR mechanisms over litigation as a mode of settling the disputes[5]. In the case of Food Corporation of India v. Joginder Mohindarpal, the Supreme Court stated that “Arbitration has a great urgency today when there has been an explosion of litigation in the Courts of law established by the sovereign power”. Similarly, in the case of Afcons Infrastructure v. Cherian Varkey Construction, the SC emphasized the importance of mediation, especially in commercial matters, and observed that this type of Alternative Dispute Resolution (ADR) is ideal for parties faced with complex issues that they are willing to resolve through Negotiations.
In India, a sudden shift from litigation to ADR in the healthcare sector will not be possible as this sector has divergent cultures and value-systems with widespread inequalities and imbalance of power and control.[6]
However, the need of the hour is to address the technicalities of ensuring a smooth ADR mechanism for healthcare disputes that shall offer open communication and prompt solutions in a transparent manner. The benefits of ADR should not be undermined and therefore, a proper Indian Model should be created to engulf ADR in the healthcare sector so that more reliance can be put on such mechanisms that do not shake the conscience of the society.
[1] https://health.economictimes.indiatimes.com/news/industry/medical-litigation-cases-go-up-by-400-show-stats/50062328
[2] https://www.kbeneschlaw.com/Paper-66_Dispute_Resolution_J_Aug-Oct_2011.pdf
[3] https://www.psqh.com/julaug08/resolution.html
[4] https://www.jurist.org/commentary/2020/05/yug-sinha-healthcare-Arbitration/
[5] https://shodhganga.inflibnet.ac.in/bitstream/10603/190313/9/09_chapter-4.pdf
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